Sordini v Wilcox

[1983] FCA 58

Re: DANILO SORDINI
And: STUART FRANCIS WILCOX, ALAN ANTHONY HARDIMAN, STANFORD BRUCE JUDDERY and
LEGAL AID COMMISSION (A.C.T.) (1983) 70 FLR 326
No. A.C.T. G59 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Blackburn(1), Woodward(2) and Keely(3) JJ.

CATCHWORDS

Administrative Law - Administrative Decisions (Judicial Review) Act 1977 - decision of Review Committee under Legal Aid Ordinance 1977 (A.C.T.) - principles to be applied.

Administrative Law - Decision of Review Committee under Legal Aid Ordinance 1977 (A.C.T.) - Provision of legal assistance by Legal Aid Commission (A.C.T.) - Decision not to assign murder case to private practitioners but to Public Defender - Review of decision - Principles to be applied - Application of guidelines for assigning cases - Whether reasonable to assign case to private practitioner - Whether an improper exercise of power - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5.

Administrative Law - Natural justice - Whether principles of natural justice applied - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5 - Legal Aid Ordinance 1977 (A.C.T.).

HEADNOTE

The appellant was charged with murder. The Legal Aid Commission was asked to assign the case to the solicitor counsel who appeared for the appellant at the inquest and committal, and to leading counsel of his choice. The Commission decided to refuse the request and assign the case to the Public Defender. The decision, upon reconsideration, was not changed by the Director of the Commission.

Upon the appellant's request the matter was referred to the Review Committee under s. 36(3) of the Legal Aid Ordinance 1977 (A.C.T.). The Committee affirmed the decision. The appellant then sought a review by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977. The learned trial judge dismissed the application for review, and the appellant appealed to the Full Court.

The problem posed before the Committee was whether the case was one which should be assigned to private practitioners. Under the Legal Aid Ordinance 1977 certain "guidelines" had been determined, the relevant one (No. 4) providing:

"In any event where a person qualifies for legal assistance then the legal staff of the Commission, only, shall if available be assigned to act for him/her:

(a) where the matter involves a charge triable upon indictment, and the costs of the matter including costs of committal proceedings are estimated by the Director or a Committee to exceed $2,000 unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner."

The appellant contended that in all the circumstances it was reasonable to assign the case to a private practitioner and the Commission and Committee should have done so.

Held: (1) Per Woodward and Keely JJ. - That the meaning of par. 4(a) of the guidelines is that only legal staff of the Commission shall be assigned (if available) in respect of certain specified cases unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private practitioner.

Per Blackburn J. (dissenting) - That the meaning is . . . unless in all the circumstances the Director is of the opinion that it is unreasonable not to assign the legally assisted person to a private legal practitioner. The test to be applied by the Review Committee was whether it was unreasonable to assign the appellant's case to the Public Defender.

(2) Per Blackburn and Woodward JJ. - That the correct approach for the court to adopt in the present case is: when reasons have been given purporting to state the considerations which have influenced an administrative authority then the reasons may be scrutinised and consideration is required of any factors which have been wrongly considered or omitted from consideration.

House v. The King (1936) 55 C.L.R. 499, followed.

Padfield v. Minister for Agriculture (1968) A.C. 997; Commonwealth of Australia v. Duncan (1982) 44 A.L.R. 249; Ormerod v. Todmorden Joint-Stock Mill Co. Ltd (1882) 8 Q.B.D. 664; Edwards v. Bairstow (1956) A.C. 14; Lovell v. Lovell (1950) 81 C.L.R. 513, referred to.

(4) Per Blackburn and Woodward JJ. - That the Review Committee erred in giving no weight or very little weight to the following factors:

(a) the unfamiliarity of the Public Defender and his staff with the appellant's case;

(b) the fact the trial was only seven working days away, at the time of the Committee's decision;

(c) the seriousness of the charge (murder) and the penalty on conviction.

(5) Per Woodward and Keely JJ. - That there had been no denial of natural justice to the appellant before the Review Committee; the complaint was that the Committee did not give the appellant's solicitors a chance to contact counsel concerning their acceptance of fees in accordance with Legal Aid Commission scale; the Committee had clearly decided that it would not be reasonable to assign the case to private practitioners even if such acceptance were forthcoming.

(6) Per Blackburn and Woodward JJ. - That the Review Committee's discretion had miscarried:

(a) Per Blackburn J. - On the basis that the Committee's basic error was in applying the wrong test, but in addition for the reasons in (4) above.

(b) Per Woodward J. - On the basis of the findings in (4) above and because there were serious flaws in the reasons relied on by the Committee.

Per Keely J. (dissenting) - It was open to the Committee to decide on the material before it that in all the circumstances it was not reasonable to assign the appellant's case to a private practitioner.

(7) Per Blackburn and Woodward JJ. - That it was within the power of the court under s. 16(1) of the Administrative Decisions (Judicial Review) Act 1977 in an appropriate case, to make the discretionary decision which the body whose decision is under review did not make; the particular or exceptional circumstances of the present case were such that the court would do so.

(8) Per Blackburn and Woodward JJ. - That, therefore, the court should declare that the appellant was entitled to a finding that it would have been reasonable for the Director of the Legal Aid Commission (A.C.T.) to assign the appellant's case to private practitioners and for him to be represented by those practitioners who in fact represented him at his trial.

HEARING

Canberra, 1982, November 4, 5; 1983, April 7. #DATE 7:4:1983

APPEAL.

This was an appeal against a decision of Northrop J. ((1982) 42 A.L.R. 245) rejecting an application under the Administrative Decisions (Judicial Review) Act 1977. The facts appear sufficiently in the judgments.

T. Higgins, for the appellant.

P. Flemming, for the respondents.

Cur. adv. vult.

Solicitors for the appellant: Gillespie-Jones & Co.

Solicitors for the respondents: B. J. O'Donovan, Commonwealth Crown Solicitor.

P.H.M.

ORDER

1. The appeal be allowed.

2. The decision of the Review Committee be set aside.

3. A declaration that the appellant was entitled to have his case assigned to the legal practitioners who in fact represented him at his trial.

4. The matter be referred to the Review Commitee for further consideration, with a direction that it be determined in accordance with the above declaration.

5. The respondent pay the taxed costs of the appeal and of the application for review.

Orders accordingly.

JUDGE1

I have had the advantage of reading the reasons for judgment of Woodward J. I agree in the result proposed by him, and with much that he says, but (with respect) not with all of it. I reach the same conclusion in a somewhat different way, and I wish to say something for myself about some aspects of this appeal.

The appellant, who had been committed for trial on a charge of murder, asked the Legal Aid Commission pursuant to the Legal Aid Ordinance 1977 ("the Ordinance") to assign his case to the solicitor and junior counsel who had appeared for him at the inquest and the committal proceedings, and to leading counsel of his choice. The Director of the Legal Aid Commission decided to refuse this request and to assign the case to the Public Defender, and when the Director, upon reconsideration, refused to change this decision, the decision was, upon the appellant's request, referred to the Review Committee under s.36(3) of the Ordinance for review. The Committee affirmed the Director's decision, and the appellant then sought review by this Court under the Administrative Decisions (Judicial Review) Act 1977. The learned judge of first instance dismissed the application for review with costs, and the appellant appeals.

The facts are fully set out in the judgment of Woodward J.

The problem posed before the Review Committee was whether the appellant's case should be assigned to private practitioners or to officers of the Legal Aid Commission. Section 11 of the Ordinance requires that the Commission should determine "guidelines" (what used to be called principles) for the solution of this kind of problem. Guidelines so determined were in evidence before us. The relevant guideline was No. 4, which reads, as far as is material, as follows:

"In any event where a person qualifies for legal assistance then the legal staff of the Commission, only, shall if available be assigned to act for him/her:-

(a) where the matter involves a charge triable upon indictment, and the costs of the matter including costs of committal proceedings are estimated by the Director or a Committee to exceed $2,000 unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner;"

There are later paragraphs dealing with other classes of case. It was agreed that the case before us came within paragraph (a). If, therefore, the guideline is to be taken in its literal sense, the question before the Review Committee was whether it was reasonable to assign the appellant's case to a private legal practitioner.

But the meaning of the guideline is, for me, a matter of concern. Hereafter, I refer to the words from "unless in all the circumstances" to the end of paragraph (a) as "the exception". Woodward J. in his reasons for judgment accepts the words as they stand and points out that the Director

"should be more easily satisfied that it would be reasonable to assign a private practitioner than that it would be unreasonable not to."

For myself, with respect for the opinion of Woodward J., I find it impossible to construe the words of the exception as meaning what at first they appear to say. In the vast majority of cases it must be "reasonable to assign the legally assisted person to a private legal practitioner". In what circumstances could it not be so? The only such circumstances that I can imagine are that the trial is in the very near future and that the applicant has been represented at the committal proceedings and up to the time when the decision is made, by officers of the Commission. The guideline therefore appears to say that a case of the kind described shall be assigned to the officers of the Commission except in circumstances which, in fact, will almost always exist.

I cannot accept this as its proper construction. Obviously the purpose of guideline no.4 is to provide for certain classes of cases which are to be assigned only to the staff of the Commission. The first of such classes (the one in question) may be described as the class of expensive criminal cases. Inexpensive criminal cases are not within the guideline at all. The rationale of bringing expensive criminal cases under the rule can be understood. The draftsman then wanted to provide an exception for some special expensive criminal cases. I do not think he should be taken to have provided an exception which will apply far more often than the rule, and to have produced a guideline which means that expensive criminal cases shall be assigned to the staff of the Commission only in the rare instance where it cannot be said that it would be reasonable to assign them to private practitioners. If that was meant, it is difficult to imagine why any special rule was made for expensive criminal cases.

In my opinion the meaning which must be given to the exception in order to preserve the guideline from absurdity is

"unless in all the circumstances the Director is of the opinion that it is unreasonable not to assign the legally assisted person to a private legal practitioner".

This is what I think the draftsman intended. Perhaps his thoughts first ran on some such wording as "more reasonable to assign the legally assisted person to a private legal practitioner than to the staff of the Commission" and then in a laudable attempt at verbal economy, and remembering that reasonableness is in principle relative rather than absolute, he framed the words of the exception as they stand.

The question of applying guideline no.4 (which is one of those made under s.11 - "for the allocation of work between officers of the Commission and private legal practitioners") only arises after it has been decided to grant legal aid, in some form, to the applicant. If, therefore, it is unreasonable not to assign the legally assisted person to a private practitioner, it follows that it must be unreasonable to assign him to the staff of the Commission. It follows, in my opinion, that the test which the Review Committee ought to have applied was whether it was unreasonable to assign the appellant's case to the Public Defender.

It might be said that the members of the Review Committee can be excused for not venturing to construe the guideline otherwise than in its literal sense. Such a venture is easier for this Court than for the Review Committee. But the guidelines, notwithstanding that they are "determined" by the Commission, are legislation which is binding on it and thus on the Review Committee. It is unfortunate that the draftsman of the guidelines has imposed this difficult problem of the construction of guideline no.4 as a burden upon the Director and the Review Committee.

I turn to what the Review Committee decided. As I have said, its task was to decide whether the exception to guideline 4(a) applied - in other words, whether the appellant's case should be assigned to officers of the Commission or to private practitioners; not to decide whether it should be assigned to some particular private practitioners rather than to others. There was no doubt that the case was one to which, prima facie, paragraph (a) of guideline no. 4 applied. The learned judge at first instance gave an account of the proceedings of the Review Committee, and I do not repeat it. The solicitor for the appellant was allowed, during a period of retirement of the Committee from the room where the hearing was conducted, to telephone to the practitioners of the appellant's choice to see whether they would accept the assignment for the fees prescribed by the Commission. When the Committee returned from its retirement, the chairman announced that the decision under review would be confirmed "so the 'phone calls won't be necessary". In fact the solicitor had been unable to reach the practitioners concerned. Although no request for reasons for the decision had been made, the chairman said that reasons would be published.

Had nothing more occurred, the Committee would have appeared to have faced the correct problem, namely whether the case came under the primary words of guideline no. 4, and should therefore be assigned to the staff of the Commission, or whether it was removed by the operation of the exception, and should therefore be assigned to private practitioners. The Committee (on this supposition) not having given reasons for its decision, it would be necessary for the Court to hold that the decision was correct, unless it appeared on its face to be otherwise, i.e. unless

"no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal":

Edwards v. Bairstow (1956) A.C. 14 per Lord Radcliffe at p.35-6.

But the Review Committee did publish reasons for its decision. The fact that, not having been requested to do so under s.40(4) of the Ordinance, it was not bound to do so, makes no difference: if a body having power to make decisions gives reasons for a decision, the reasons may be scrutinized. The cases which have repeatedly affirmed this principle (e.g. Padfield v. Minister of Agriculture (1968) A.C. 997) are mostly prerogative writ cases, but in my opinion the same principle applies to review under the Administrative Decisions (Judicial Review) Act 1977, and it can make no difference that the Act provides means (s.13) whereby a person dissatisfied by a decision may require reasons to be furnished.

The Review Committee's published reasons show that the test it applied was whether it was reasonable to assign the case to private practitioners, and its conclusion was that it was not. In my opinion, as I have said, this was not the correct test. What the Committee had to decide was whether it was unreasonable to assign the case to officers of the Commission. With due respect to the members of the Review Committee, I think they were in error, though given the draftsmanship of guideline no. 4, their mistake was understandable. The learned judge held that the Committee decided the review in accordance with the guidelines determined by the Commission in pursuance of s.11 of the Ordinance. Again with due respect, and because of the construction which I must put on the exception to guideline no. 4(a), I am unable to agree. On this ground I would uphold the appeal.

I wish to say no more about the matters canvassed in argument before us, save one. I express my emphatic agreement with the rejection by Woodward J. of the argument that the appellant had so little confidence in the Public Defender that it would have been wrong for that officer to appear for him. The argument was based on nothing more than the instructions of the appellant, repeated by his solicitor in letters and at the hearing before the Committee, and by his counsel before this Court, that the appellant did not wish the Public Defender to appear for him. In my opinion the question whether in circumstances of that kind the Public Defender can properly appear for an applicant for legal aid can only be answered after an examination of the reasons for the applicant's attitude. In this case none were given.

I wish also to endorse the warning of Woodward J. that applicants for legal aid should not try to force the hand of the Commission by instructing private practitioners in the first place and making a late application for legal aid. It is not suggested that this appellant did so.

I would also suggest a reconsideration of the drafting of some of the guidelines, in particular paragraph (b) of guideline no.2 and paragraph (a) of guideline no. 4.

It is not easy to decide what the order of the Court should be. Being of opinion that the learned judge should have set aside the decision of the Review Committee as having been made on a wrong principle, I would allow the appeal and set aside the Committee's decision, but it would be strange to remit the matter for further consideration without saying more, since the situation for which the Committee's decision was required has long ceased to exist. The Court has power to give directions upon such remission (s.16(1)(b)) and to make declarations of right (s.16(1)(c)). In my opinion it is within the purpose of the Act that in the appropriate case the Court should make the discretionary decision which the body whose decision is under appeal did not make. Such cases may be exceptional, but it seems to me that this is one of them.

Woodward J. in his reasons for judgment has explained the ways in which in his opinion the Review Committee was in error. As I have said, I think that the Committee's basic error was in applying the wrong test; but I agree with Woodward J. that the Committee was wrong to give no weight or very little weight to some other factors of importance. Foremost among these I would put the unfamiliarity of the Public Defender and his staff with the appellant's case, at a time when the trial was only seven working days in the future. This factor hardly applied when the Director first made his decision, which was before 22 December, and was not of great significance when he reconsidered his decision, which was before 12 January. But the Review Committee's decision was made on 26 January; the trial was by that time listed for 8 February. To this I add (as Woodward J. does) the fact that the charge was murder and the penalty on conviction was imprisonment for life. I believe that this Court can say that had the Committee applied the proper test it must have come to the conclusion that it was unreasonable on 26 January to assign the appellant's case to the staff of the Commission. I would therefore make a declaration that the appellant was entitled to have his case assigned to the private practitioners who in fact represented him at his trial. I would order that the matter be referred to the Review Committee for further consideration, and add a direction that the Committee should determine it in accordance with this declaration.

The respondent Commission should pay the taxed costs of the appeal and of the application at first instance.

JUDGE2

This is an appeal from a decision of Northrop J. rejecting an application under the Administrative Decisions (Judicial Review) Act 1977.

The applicants had sought to review a decision of the first, second and third-named respondents who constituted a Review Committee established under the Legal Aid Ordinance 1977 of the Australian Capital Territory. The fourth-named respondent, the Legal Aid Commission (ACT), had considered an application for legal aid on behalf of the first-named applicant, who had been charged with murder.

The Commission granted the application, but only on the basis that the defence would be conducted by the Public Defender, assisted by an officer from the Commission's staff.

In reaching this decision, which was re-affirmed after further representations by the applicant's solicitors, the Commission purported to act pursuant to the Legal Aid Ordinance and guidelines established under that Ordinance.

The accused had been represented by private solicitors and counsel at the coroner's inquest. He had been offered legal aid to engage the private practitioners of his choice for those proceedings, but had declined that offer because he wished to engage two counsel, and this would have taken the costs beyond those which the Legal Aid Commission (ACT) would allow for committal proceedings. For his trial he wished to retain the same solicitors and junior counsel but, acting on his solicitors' advice, he wished to engage Queen's Counsel in place of the experienced barrister who had led for him at the committal hearings. He therefore appealed to the Review Committee provided for by the Ordinance for reconsideration of the assignment of the Public Defender to conduct his defence. When that appeal was rejected, he went to trial with the practitioners of his own choice, including Queen's Counsel, representing him, but without legal aid. His parents, the second and third-named applicants, had to mortgage their home as security for the costs of their son's defence. (Because of their doubtful standing in this matter they are not parties to this appeal.)

In the event, the jury was divided at his first trial, and again on a second trial. We were not informed as to the appellant's present position. Since this appeal concerns legal aid for the first trial only, later events are not relevant.

The purpose of the application to Northrop J. was to review the decision of the Review Committee and obtain an appropriate order which would have the effect that the Legal Aid Commission (ACT) would pay the costs of the defence at the first trial, said to amount to some $17,500.

In dealing with the merits of the application it is convenient first to set out the sub-section of the Ordinance which confers a discretion on the Commission as to what practitioners should be made available to a litigant to whom it has been decided to grant legal aid.

The relevant parts of sub-section 26(3) provide,

'Where ... an officer of the Commission decides to grant an application for legal assistance, the ... officer shall also decide, in accordance with guidelines determined by the Commission in pursuance of sections 11...-

(a) whether the legal assistance should be provided by making available the services of a private legal practitioner or whether the legal assistance should be provided by making available the services of an officer of the Commission;

(b) the nature and extent of the legal assistance to be provided; ...' Section 11 of the Ordinance is in the following terms,

'The Commission shall determine guidelines for the allocation of work between officers of the Commission and private legal practitioners having regard to the following considerations:

(a) the need for legal services to be readily available and easily accessible to disadvantaged persons;

(b) the need to make the most efficient use of the moneys available to the Commission;

(c) the desirability of enabling a legally assisted person to obtain the services of the lawyer of his choice;

(d) the desirability of maintaining the independence of the private legal profession; and

(e) the desirability of enabling officers of the Commission to utilize and develop their expertise and maintain their professional standards by conducting litigation and doing other kinds of professional legal work.'

The guidelines determined by the Commission, so far as they are relevant for present purposes, are in the following terms _

1. 'Where a person has not chosen a legal practitioner to act for him, he will subject to 2(c) hereof, be offered the choice of a private legal practitioner on the list maintained by the Commission or the services of a legal practitioner who is an officer or member of staff of the Commission.

2.Subject to these Guidelines, a person who applies for legal assistance through a private legal practitioner shall be referred by the Commission to that practitioner upon a grant of legal assistance. Provided that such referral shall not occur where:-

(b) where (sic) such referral is not contrary to the Commission's duty and the importance of ensuring that the commitment and actual financial commitments of the Commission do not exceed the amount of commitment and/or funds available to it from time to time; or

(c) there is some other good reason in the opinion of the Commission not to do so.

3. A legally assisted person has the right to change solicitors provided that:-

(a) he first gives notice in writing to the Director of his intention to do so and gives reasons;

(b) the Director or his delegate or a Committee approves; and

(c) as a general rule, no additional expense is incurred by the change.

4. In any event where a person qualifies for legal assistance then the legal staff of the Commission, only, shall if available be assigned to act for him/her:-

(a) where the matter involves a charge triable upon indictment, and the costs of the matter including costs of committal proceedings are estimated by the Director or a Committee to exceed $2,000 unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner;

(b) in all applications for the dissolution of marriage where the Guidelines permit the granting of assistance; (c) in respect of Debtors Bankruptcy Petitions;

(d) in matters under Clause 8 of the Further Guidelines where a discretion is exercised by the Director or a Committee; and

(e) in preparing simple wills in appropriate cases.'

These guidelines are not as clear as guidelines should be if they are to be helpful.

Sub-paragraph 2(b) is virtually unintelligible. It was suggested in argument that it might make sense if the word 'not' in the first line were deleted, but even such drastic re-writing would still leave problems both of grammar and of meaning. In particular, it is not clear what duty of the Commission is being referred to, and the phrase 'the commitment and actual financial commitments' is very confusing. I find it remarkable that such a 'guideline' could have been thought to satisfy the requirements of the Ordinance when it was determined in February 1980 and could have escaped attention when the guidelines were later amended.

Paragraph 4 of the guidelines is also strangely worded, although its te is clear enough. The wording chosen is difficult to apply because, having set out the intended rule quite clearly (to the effect that the legal staff of the Commission, only, shall be assigned to certain specified cases) the guideline goes on to state the exception in the following terms, '... unless in all the circumstances the Director is of the opinion that it is reasonable to assign (a private practitioner) ...'

One might have expected the guideline to read '... unless in all the circumstances the Director is of the opinion that it would be unreasonable not to assign ...'; the result of the words chosen must be to make the test which the Director must apply somewhat less onerous. He should be more easily satisfied that it would be reasonable to assign a private practitioner than that it would be unreasonable not to. The difference may not be very great, but it must at least have the result that borderline cases should be resolved in favour of the applicant.

All the many cases involving charges triable upon indictment, where the costs (including those of committal proceedings) are estimated to exceed $2000, must logically fall into one of three categories _

(a) those where it would be reasonable to assign the matter to the legal staff of the Commission, but unreasonable to assign it to a private practitioner; (these will be the great majority of cases, because I believe the premise must be implied that it is generally unreasonable to expect the taxpayer to bear the higher cost of private practitioners in lengthy criminal trials when a competent public defender is available);

(b) those where it would be reasonable to assign the matter either to a private practitioner or to the legal staff of the Commission; and

(c) those where it would be reasonable to assign the matter to a private practitioner, but unreasonable to assign it to the legal staff of the Commission.

The task for the Director (and on reconsideration the Review Committee) is to determine whether, having regard to the general principles of the guidelines, the particular case falls within either group (b) or group (c). If it does, then a private practitioner should be assigned.

This may or may not have been the result intended by the guidelines; but in my view it is the result produced.

Having considered the effect of these two difficult segments of the guidelines it is convenient now to return to the main principles of those guidelines relevant to this case.

These are that,

(1) a person who applies for legal assistance through a practitioner of his choice will, if successful, normally be referred to that practitioner; and

(2) this will not apply in the case of even moderately expensive criminal trials, if members of the legal staff of the Commission are available, unless the Director exercises the discretion already described in favour of assigning the matter to a private practitioner.

It may reasonably be assumed, and was assumed in argument, that the policy considerations underlying this second principle are, first, that the legal staff of the Commission, and particularly the officer designated Public Defender, should be kept substantially employed; and secondly, costs of legal aid in criminal trials should be kept within reason and, more particularly, within budget.

These being the guidelines which, whatever may be said of them, the Review Committee was clearly bound to apply, the question next arises as how the Review Committee went about its task of reconsidering the 'reasonableness' of assigning the private practitioners of his choice to conduct the appellant's defence. The

relevant parts of the Ordinance which govern the procedures of the Revi Committee are as follows

'39A.A Review Committee that reviews a decision referred to it under sub-section 36(3) shall not make a decision on the review unless it has afforded to the person who requested the review a reasonable opportunity:

(a) to attend a meeting of the Review Committee;

(b) to address the Review Committee in relation to the review; and

(c) to place before the Committee any document relevant to the review.

40. (1) A Review Committee that reviews a decision of an officer of the Commission or of a Legal Aid Committee referred to it under sub-section 36(3) (in this section referred to as a 'primary decision') shall give a decision in writing -

(a) confirming the primary decision;

(b) varying the primary decision; or

(c) setting aside the primary decision and making a decision in substitution for the primary decision. .......

(3) A Review Committee shall cause copy of its decision to be sent to the person who requested the review and to the Commision.

(4) A Review Committee shall, if requested to do so by the person who requested the review, cause a short statement in writing of the reasons for the decision to be sent to the person.

(5) The decision of a Review Committee shall be final and conclusive."

So far as the proceedings before the Committee are concerned, I cannot do better than to adopt Northrop J.'s description of them. He said

'A Review Committee constituted by the first three named respondents reviewed the decision of the Director at a meeting held on 26 January 1982. The first named applicant and his solicitor each attended that meeting. A transcript was taken of what they said at that meeting. Many matters were raised by members of the Committee, the first named applicant and his solicitor and the last two named persons were given every opportunity to address the Committee in relation to the review and to place before the Committee any documents relevant to the review. The documents placed before the Committee included correspondence between the first named applicant and his solicitors, between those solicitors and the parents, a letter of advice from the parents' solicitors to the parents, and a letter from the first named applicant's solicitors to Queen's Counsel confirming the brief of counsel and the fees to be charged and that the parents were paying the legal expenses. In addition, the earlier correspondence between the Director and the first named applicant's solicitors was before the Committee. As a preliminary matter the Committee ruled that it had jurisdiction to review the decision of the Director. The substance of the claim for review was that the first named applicant was satisfied with his representation in relation to the committal proceedings and that he thought that his legal representatives would do a good job on the trial and that he did not want the Public Defender to defend him because he thought that that representation may not be adequate and felt that there would be a greater likelihood of a mistake being made. He was affected also by what he had heard at the remand centre concerning trials conducted by the Public Defender. As I have said, thereafter the discussions ranged far and wide including discussions concerning the fees to be charged by the Queen's Counsel and the fees to be determined by the Commission and set out in the scale published by the Commission. During the course of submissions the chairman of the Committee asked the question, if the matter be assigned to the first named applicant's solicitors, whether the private practitioners, including Queen's Counsel, would do the case for the fees that had been determined by the Commission. The solicitor answered that he would have to speak to counsel about that. The chairman also put to the solicitor:

'Right now, the question is are you or is your team if you like, prepared to do it for those fees (as determined by the Commission) because we take the view, we think rightly, that we as a Committee have no power to override the fees fixed by the Commission."

In reply the solicitor said:

'I understand that you may take that view that's why I put to you a second alternative. The only thing I could do is talk to them.

' Following further substantial discussions the chairman asked the solicitor whether there was anything further he wanted to put, to which the solicitor replied:

'I don't think there is anything else I can put Mr. Chairman.'

Thereafter further discussions took place concerning the question of fees and the 'right' of a legally assisted person to have legal practitioners of their choice. During these discussions it was put to the solicitor that it would be necessary to know whether the private legal practitioners, including the Queen's Counsel, would accept an offer of legal assistance by arranging for the services of private legal practitioners since, if accepted, the fees to be charged by them would be much less than those that had been negotiated and the difference could not be paid to the private legal practitioners, since otherwise there would be no merit in assigning the matter to them. The question was of some urgency since the trial was due to commence on 8 February 1982 and time was needed for the preparation for trial by the person who was to appear. To enable the solicitor to attempt to telephone counsel, the Committee proposed to retire to consider the matter. As one member said, 'I think we must try and decide whether or not it is a matter we would assign even if they would accept it'. The chairman then arranged for the solicitor to have the use of the telephone in the room in which the Committee was meeting and then said that the solicitor could use that telephone 'and we can discuss it in the meantime'. The members of the Committee then retired to another room. The solicitor attempted, unsuccessfully, to contact counsel. He then informed the members of the Committee that he had been unable to contact either counsel, but that he thought he could contact them that afternoon. The Committee informed him that that was unnecessary as a decision had already been made."

As Northrop J. went on to say, the Committee meeting was then resumed and the chairman said: 'We have come to a decision about this and the decision is to affirm the decision that's under review and we will publish our reasons as we are required to do, so the phone calls won't be necessary. I might add that that's a unanimous decision not that it makes any difference one way or the other but it is unanimous. And that concludes that. But we will publish the reasons and we'll have them out to you tomorrow.'

The decision of the Committee was conveyed in writing to the appellant's solicitors. This letter repeated the Committee's undertaking that its reasons for decision would be delivered shortly, thus forestalling any request for those reasons pursuant to s.40(4) of the Ordinance.

In fact the reasons were published some two weeks later, on 11 February, the fourth day of the appellant's trial. They were as follows 'REASONS FOR DECISION APPLICATION BY DANILO SORDINI TO REVIEW THE DIREC DECISION

The applicant and his solicitor appeared on the hearing of an application to review the decision of the Director, subsequently reconsidered and confirmed in substance, to assign this case to the Public Defender and staff. The original grant of aid was for solicitors in respect of an inquest into the death of Alan Brennan on the 11th August 1981. Although aid was granted for that representation the account, when it was subsequently rendered by the applicant's solicitors, was paid by the applicant or his parents. The present application in reality relates to the representation of the applicant at the trial which is fixed for the 8th February 1982.

The Committee decided that it had jurisdiction to review this particular decision though that decision on jurisdiction was not unanimous (Mr. Hardiman dissenting). The Committee is of the view that it is bound by the guide lines determined by the Commission pursuant to Section 11 of the Legal Aid Ordinance though it recognises that it has a duty to hear the applicant and his solicitor in full as indeed the Committee has done. The proposition that the Committee is bound by the guide lines of the Commission was not challenged by the applicant and the members of the Committee having read the decision of the Court of Appeal in New South Wales in Legal Services Commission of New South Wales -v- G.J. Stephens believes that that decision re-enforces the view that the guide lines are both valid and bind this Committee.

On page 4 of the guide lines in paragraph 4 it is provided that where the fees are likely to exceed $2,000.00 then officers of the Commission will be assigned to the case 'unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner'. Obviously the present case is one where the fees will substantially exceed the sum of $2,000.00, and the question for the Committee is one of reasonableness.

It transpired at the hearing that the applicant's solicitor had advised his client to obtain independent legal advice concerning representation at the hearing. That advice was to the effect that it was the sort of case where Queen's Counsel is necessary. It also appeared that Mr. Toomey of Queen's Counsel had already been engaged and the fees with him had been agreed. It further appeared that the applicant was not going to be required to pay any legal fees to his advisers immediately but that his parents would provide security for costs in the form of a mortgage over the parents' home for a maximum sum of $25,000.00 or such lesser sum as will be involved depending upon the amount of the account at the conclusion of the matter. The size of the account will obviously vary with the length of the trial and other factors that may occur during the trial. It appeared also that that arrangement with Counsel was a definite arrangement and that a brief either had been delivered or would be delivered upon the basis agreed. The applicant was unable to indicate that his advisers would accept an assignment from the Commission upon the prescribed fees laid down by the Commission.

The applicant's solicitor attempted to ascertain the views of Mr. Higgins and Mr. Toomey on that matter but neither was available and accordingly the Committee was left in the position of not knowing whether, if the case were assigned to Mr. Gillespie-Jones and Counsel, that assignment could be accepted. It is obviously unpractical (sic) and unreasonable to refer the case to the private practitioner when the private practitioner is not able to indicate that he and his Counsel will accept the assignment on the basis of the fees prescribed by the Commission. It also appeared that the Public Defender was available and was willing to undertake this trial. No convincing reason was advanced why the Public Defender would perform any less well in the conduct of the matter and with the assistance of the staff of the Commission than would Mr. Toomey of Counsel with Mr. Higgins of Junior Counsel and Mr. Gillepsie-Jones as instructing solicitor. In the view of the Committee there was nothing to choose between the competence, on the evidence presented to the Committee, between the competing potential representatives of the applicant. The Committee was aware that there are nearly one thousand pages of transcript of the evidence at the inquest to read but it is obvious that that task has to be undertaken either by Mr. Toomey, who did not represent the applicant at the inquest, or by the Public Defender who did not represent him either. Although the applicant's independent advice was to the effect that Queen's Counsel was necessary it was also evident that an opinion had been expressed by .... Counsel who led Mr. Higgins at the inquest for the applicant that it was not essential for Queen's Counsel to represent the applicant.

In all these circumstances the Committee was of the view that it was not reasonable to assign this case to the private profession and accordingly the Committee confirmed the decision of the Director."

The applicants then instituted these proceedings pursuant to s.5 of the Judicial Review Act and the matter came, in due course, before Northrop J.

Counsel for the applicants limited his submissions to two grounds. The first was that there had been a breach of the rules of natural justice within the meaning of s.5(1)(a) of the Judicial Review Act. His Honour did not find it necessary to decide whether the rules of natural justice are imported by law into the conduct of meetings by the Review Committee. He was prepared to accept, for the sake of argument, that s.39A of the Ordinance required the Committee to give the applicants' solicitor a chance to contact counsel concerning the amount of their fees, if that matter had been relevant to the Committee's decision. A failure to do so, in such circumstances, would have constituted a failure to observe required procedures, within the meaning of s.5(1)(b) of the Judicial Review Act. However his Honour held that in fact, whatever may have been said in the reasons for decision, the Committee had edcided that it would not be reasonable to assign the case to private practitioners even if they were prepared to accept the Commission's approved scale of fees. I agree, with respect, with his Honour's analysis of the relevant events.

It is clear from the transcript of the Committee's hearing that, when the Committee adjourned to consider the application, it was understood that the applicants' solicitor would try to contact counsel to consult them about their fees.

It is also clear that it was within the power of the Committee, after deliberating, to come back and say that, regardless of the willingness of counsel to work for reduced fees, the Committee was satisfied that it would not be reasonable to assign the case to private practitioners. This is what the Committee seemed to do. After deliberating, its members returned to the hearing room, and the Chairman said,

'We have come to a decision about this and the decision is to affirm the decision that's under review .... so the phone calls won't be necessary ....'

In the light of this statement it is, to say the least, surprising to find in the Committee's reasons for decision the following passage, which I repeat for convenience,

'The applicant was unable to indicate that his advisers would accept an assignment from the Commission upon the prescribed fees laid down by the Commission. The applicant's solicitor attempted to ascertain the views of Mr. Higgins and Mr. Toomey on that matter but neither was available and accordingly the Committee was left in the position of not knowing whether, if the case were assigned to Mr. Gillespie-Jones and Counsel, that assignment would be accepted. It is obviously unpractical (sic) and unreasonable to refer the case to the private practitioner when the private practitioner is not able to indicate that he and his Counsel will accept the assignment on the basis of the fees prescribed by the Commission.'

If the factor referred to had indeed weighed with the Committee, I would have no difficulty in saying that the applicants were denied natural justice by not being given an adequate opportunity to contact counsel about their fees after the question was raised by the Committee; or, if rules of natural justice are excluded or limited by s.39A of the Ordinance, then there had been a failure to observe the requirements of that section.

However I agree with Northrop J. that in truth the Committee decided it would not assign the matter to private practitioners even if they all agreed to accept the prescribed fees. In fact it did not even know, when it returned to the hearing room to announce its decision, that the solicitor had been unable to reach counsel up until that time. And the affidavit of the Chairman of the Committee states that the Committee made up its mind before it knew whether or not the attempts to contact counsel had been successful. The other ground of application put to Northrop J. was that the making of the decision was an improper exercise of the power given by the Ordinance, within the meaning of s.5(1)(e) of the Judicial Review Act, in that the Committee had taken irrelevant considerations into account and failed to take some relevant considerations into account (s.5(2) of that Act).

His Honour referred to House v The King (1936) 55 CLR 499 as containing the authoritative statement of principle to be applied in deciding whether a discretion has been validly exercised or not. In that case, Dixon, Evatt and McTiernan JJ. said, at pp. 504-5,

'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

After thus quoting the High Court, Northrop J. went on,

'There is no need to make reference to any of the other numerous authorities relating to this matter. The statement in House v The King related to a court exercising appellate jurisdiction. With necessary adaptions, the principle applies equally to a court exercising original jurisdiction in considering the exercise of a discretion by an administrative body. The application of the principle can be summarized, particularly where the reasons given by the administrative body may not be as adequate as could be desired, as follows:

'Whether the material before the administrative body was such that the body properly directing itself to all relevant matters of law could not have reached the conclusion that it did."

Section 5(1)(e) of the Judicial Review Act states the prin ciple in another way and particular instances are given in s.5(2) of the Act

. A full summary of the material before the Committee has been set out. It is not necessary to refer in detail to that material. The reasons for decision of the Committee have been set out in full and reference has been made to one defect in them, but in the circumstances of this case that defect is not sufficient to establish the ground set out in s.5(1)(e) of the Judicial Review Act. Lengthy and detailed submissions were made to the Court by counsel for the applicant, but in reality they were directed more to persuading the Court itself to exercise a discretion conferred by the Ordinance on the Committee. That is the very thing the Court should not do. The Committee had to decide whether, in its opinion, it was reasonable to assign the applicant to the private legal practitioners referred to in the application before it. It complied with the requirements of s.39A of the Ordinance as well as the other requirements set out in the Ordinance. It gave reasons for its decision. Full consideration has been given to all the submissions made by counsel for the applicant. The Court finds that the applicant has not made out the ground set out in s.5(1)(e) of the Judicial Review Act nor any of the other grounds contained in s.5."

The notice of appeal to this Court from Northrop J.'s decision contains three pages of grounds. Counsel for the appellant was reluctant to rely upon individual grounds, saying that he would refer to the notice of appeal 'only for the purpose of saying that the arguments I will put are certainly within it'.

The substance of his arguments was that Northrop J. had erred in law, first, in failing to conclude that on the material before it the Committee was bound to find that it was reasonable to assign private practitioners and, secondly, in failing to inquire whether the Review Committee had taken into account irrelevant considerations or not taken into account considerations that were relevant and material. He said that his Honour had simply taken 'a blanket approach' to the matter in refusing to interfere with the exercise of the Committee's discretion.

In particular he said that

(a) the Committee members failed to take into account the fact that the Public Defender could not ethically represent the appellant because the appellant had no confidence in him;

(b) they also had insufficient regard to advice about the need for Quee Counsel, or at least another experienced barrister, to lead the junior counsel who had appeared at the committal proceedings, to conduct the appellant's defence;

(c) they failed to give sufficient attention to the appellant's determination to be represented by Counsel of his choice, and the financial hardship which would be caused to his parents, as a result, if the application was not granted;

(d) they failed to take account of the complexity of the case; and

(e) they gave too much weight to the opinion of counsel who led for the appellant at the committal proceedings, that it was unnecessary to brief Queen's Counsel for the trial; they also misunderstood the true nature of that opinion. These arguments were in fact, as counsel submitted, adequately covered by the notice of appeal.

The first question which this Court has to decide is whether there was any error of law in the way in which Northrop J. approached his task under the Judicial Review Act.

In my view there is only one possible criticism which can be made of his Honour's very careful judgment. This is that, in moving from the requirements of the Judicial Review Act to the High Court's decision in House v The King (above), and then paraphrasing the effect of that decision, his Honour concentrated on the broad approach which asks whether the Committee could not properly have reached the result it did on the material before it. His Honour in fact said that this approach was particularly appropriate 'where the reasons given by the administrative body may not be as adequate as could be desired'.

I would respectfully maintain that, when reasons have been given purporting to state the considerations which have influenced the administrative authority _ in this case the Review Committee _ then both the Judicial Review Act and House v The King, so far as it is relevant to administrative discretion, require a consideration of any factors which have been wrongly considered or omitted from consideration. It would be a strange result if inadequate reasons were to be reviewed on a less critical basis than carefully considered and fully stated reasons.

I should perhaps say, in passing, that I agree with what Franki J. said in Commonwealth of Australia v Duncan (unreported, 15 October 1982) to the effect that '... this Court should not look over-critically at the words used in decisions by members of administrative tribunals, many of whom are not lawyers'. However the present case is one in which two of the three members of the tribunal in question were experienced lawyers, and it is the substance of the reasons which is in issue, not the choice of words.

I believe that House v The King (above) makes it clear that there are three different circumstances in which an appellate court will interfere with the exercise of a discretion. In my opinion these three situations apply equally to the review of judicial and administrative discretions.

The first of these is where there has been an error of law in the sense of the misinterpretation of an enabling statute or the violation of some established legal principle. That is not the case here.

The second is where there is no apparent reason for the error into which the tribunal has fallen, but the result arrived at is so clearly wrong that it cannot be allowed to stand. An error of law somewhere in the process of marshalling and considering the available material must be presumed. These are the cases in which it is said that the appellate court will not interfere unless 'the case is perfectly clear', as Brett L.J. said in Ormerod v Todmorden Joint Stock Mill Co Ltd (1882) 8 QBD 664 at 679, or 'no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal', as Lord Radcliffe said in Edwards (Inspector of Taxes) v Bairstow 1956 AC 14 at 35-6.

This is, as I have said, the test which Northrop J. applied in the present case. He formulated the test as being

'whether the material before the administrative body was such that the body properly directing itself to all relevant matters of law could not have reached the conclusion that it did.'

However I believe that there is sufficient material in the reasons for in this case to enable, and indeed require, a more detailed analysis of the way in which the Committee carried out its function.

It is clear that the taking into account by an administrative tribunal of irrelevant factors, or the failure to give any, or any sufficient, weight to significant factors in the exercise of a discretion, will open the door to a judicial review of that discretion. This is the third circumstance in which an appellate court may interfere. See, for example, Edmund Davies L.J. in Instrumatic Ltd v Suprabase Ltd (1969) 1 WLR 519; (1969) 2 All ER 131.

What happens next must depend upon the seriousness of the tribunal's default in relationship to the totality of the factors it has had to consider.

If the factor in question is only one of a number relied on by the tribunal, then weight must continue to be given to the decision of the tribunal, which will only be overturned if the court 'comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully' (per Kitto J. in Lovell v Lovell (1950) 81 CLR 513 at 533).

But, I believe, if the material before the court suggests that the default of the tribunal has been serious and significant _ in taking into account matters which ought not to have been given any weight or giving little or no weight to important factors _ then there can be little guidance to be had from the tribunal's decision and the court should more readily substitute its own discretion.

Having decided the approach which ought to be adopted in reviewing the exercise of administrative discretion in the present case, it is necessary now to examine the reasons given by the Committee for reaching the decision which it did.

The first reason given was the one found by Northrop J. to have been no reason at all _ this related to the willingness of counsel to accept prescribed fees.

The second reason was that the Public Defender was available and willing to undertake the defence. The Committee said that

'no convincing reason was advanced why the Public Defender would perform any less well in the conduct of the matter and with the assistance of the staff of the Commission than would Mr. Toomey of Counsel with Mr. Higgins of Junior Counsel and Mr. Gillespie-Jones as instructing solicitor. In the view of the Committee there was nothing to choose between the competence, on the evidence presented to the Committee, between the competing potential representatives of the applicant. The Committee was aware that there are nearly one thousand pages of transcript of the evidence at the inquest to read but it is obvious that that task has to be undertaken either by Mr. Toomey, who did not represent the applicant at the inquest, or by the Public Defender who did not represent him either'.

I can find in that statement no adequate consideration as to whether this was a case appropriate for, or perhaps requiring, two counsel. The reference to the need to study 1000 pages of evidence at the inquest proceedings, as if the Queen's Counsel retained and the Public Defender were on an equal footing, completely ignores the great advantage that the private solicitor and junior counsel would have enjoyed from being present at those proceedings and having an opportunity to assess the strengths and weaknesses of witnesses. They must also have been present at conferences with the accused and perhaps other potential witnesses on his behalf. It is true that the Public Defender could have sought the assistance of junior counsel, or even a leader, if he thought _ after becoming familiar with the case _ that one was required. But by the time such arrangements had been made, the trial must necessarily have been very close indeed.

The only other reason given by the Committee related to the opinion expressed by counsel who had led at the committal hearings. Reliance was placed on his expressed opinion that a Queen's Counsel was not needed. However, properly understood, it is probable that he meant that he and his former junior could handle the case between them, as they had the committal proceedings; he was not expressing a general view to the effect that a QC was not needed or that two counsel were not needed. There were cogent reasons of health why it would not have been appropriate to brief this counsel for the trial.

It will be seen from what I have said that, of the three reasons advanced by the Committee for its decision, the first was no reason at all, the second was seriously deficient in that it overlooked a most important consideration, and the third was based on a probable misunderstanding of one person's opinion which may well have been affected in any event by a degree of self-interest.

So much for the stated reasons for the committee's decision. The next question to be asked is whether there were any significant omissions from those reasons. I believe that four can be readily identified.

The first, already referred to, is that, of the proposed private practitioners, the solicitor and junior counsel had acted for the accused at the committal proceedings.

The second is that the charge involved was one of murder, for which the penalty is life imprisonment.

The third is that the case was at least quite difficult and complex, requiring the services of an experienced criminal advocate and, arguably, a reasonably experienced junior counsel also.

The Committee was informed that among the legal issues likely to arise were the admissibility of dying depositions, problems of causation raised by allegations of neglect by hospital staff, and diminished responsibility caused by consumption of alcohol. On the factual side there were many witnesses to be called, much of their evidence being contradictory and yet all of it being important because of the absence of any eye-witnesses to the killing. The Committee was also told that it was understood that the Crown had tried to brief a Queen's Counsel for the prosecution, but none was readily available. It was argued that the case for the defence is, in such cases as this, more difficult to present than the case for the prosecution.

Finally, there was very little time, between the hearing before the Review Committee and the date of the trial, for an entirely new group of practitioners to become familiar with the facts and the issues involved. This was not due to any fault or delay on anyone's part. There were in fact seven clear working days between the two events. There was no material before the Committee as to the Public Defender's commitments in those seven days.

Other omissions which I do not believe to have been significant were suggested by counsel for the appellant. I would reject the argument that the appellant had so little confidence in the Public Defender that it would have been wrong and unethical for that officer to appear for him.

In the light of the evidence, I think the Review Committee was entitled to find, as it did, that the Public Defender would, in all probability, have done as competent a job as a suitably experienced Queen's Counsel, given the same level of support. The appellant's solicitors had formally advised his parents, on January 14 1982, that the Public Defender would provide adequate representation. I do not believe that the appellant had formed a view so adverse to the Public Defender that it would have been unethical for that official to act for him. I think he had merely accepted advice that he would be be better off with the private practitioners who had been retained.

Nor do I believe that the Committee was obliged to give weight to the applicant's determination to have counsel of his own choice, whatever the Committee might decide. It is not to be contemplated that irrational or prejudiced litigants should get counsel of their own choice, while more sensible and open-minded litigants are assigned to the Public Defender.

Two factors which were not put in evidence before the Committee, which were obviously important and which might have pointed either way were, first, the financial state of the Commission and the likely calls upon its resources in the balance of the financial year. No evidence of this was put before the Committee and it was conceded before us that it should have been, if that was going to be relied upon as a matter affecting the discretion of the Committee. I am not satisfied that the Commission must place its financial affairs before an applicant in a case such as this, and be prepared to debate the figures, before it can rely on them as a relevant factor. But they must at least be placed before the Committee in some formal way if the Committee is to give weight to the current financial situation of the Commission _ as distinct from the general public interest in keeping legal aid costs at a reasonable level.

The other major factor which could have told against the exercise of discretion in favour of the applicants was the need to keep the staff of the Commission, particularly the Public Defender, gainfully employed. It would clearly be wrong to waste these human resources.

Again there was no evidence before the Committee on this matter, other than the bare fact that the Public Defender and another member of the Commission's staff were available to conduct the defence. The Committee was told nothing of the Public Defender's current workload, which could have been very light or quite heavy.

Having considered the reasons for decision of the Committee, it is also desirable to examine the transcript of the Committee's proceedings, to see if any further considerations emerge which did not find their way into those formally stated reasons.

However I cannot find in the transcript any adequate attention to some of the considerations which I consider to be of crucial importance to the exercise of the Committee's discretion in this case. There is, understandably, a good deal of attention given to the respective merits of the proposed Queen's Counsel and the Public Defender; there is interest in the details of the arrangements for the second and third-named applicants first to mortgage and then to sell their home to pay for the costs if the application was unsuccessful. There was a great deal of emphasis placed by the applicants' solicitor on the wishes of the accused man as to who should represent him. This consideration was, I believe rightly, given no great weight by the Committee because it could not be said to have been a well-informed preference which he was expressing. It would have been much more relevant, I believe, if emphasis had been placed on the objective arguments in favour of those experienced in the particular case rather than on the subjective arguments.

In the event, I believe that there were two important and closely related factors to which the Committee gave either no weight or very little weight _ these were the familiarity with the case of the solicitor and junior counsel whom the applicants wished to have assigned to it, and the very limited time available to prepare the case. When to these are added the seriousness of the offence charged and the inevitable heavy penalty on conviction, which seem not to have been specifically considered either, I believe that the Committee's discretion has seriously miscarried. Also relevant to this conclusion is the Committee's apparent reliance upon its probably mistaken understanding of a view expressed by counsel who appeared for the appellant at the Committal proceedings

. In the present case, having determined that the Committee was in error in the several ways I have described, I believe that this Court should now substitute its discretion for that of the Committee. It has the necessary material before it and has had the benefit of full arguments. I think that, in the particular circumstances of this case, it would be awkward, somewhat invidious, and a waste of time and money, to refer the matter back to the Review Committee for further consideration of the merits of the application. I believe that the course I propose is open to the Court, as being within the reasonably wide powers granted by s.16(1) of the Judicial Review Act.

Putting myself in the position the Review Committee was in on 26 January 1982, I could not say that it would not have been reasonable to assign to his defence the private practitioners of the appellant's choice. I have no doubt that the Committee should have awaited the outcome of inquiries as to the fees which the counsel selected on behalf of the accused were prepared to accept. Because it did not wait, we cannot be sure what the answer would have been. However this appeal has been argued on the basis that the only grant of aid that can properly be made would be based on the Commission's scale of fees and living allowances normally approved in such circumstances, and that counsel can recover no more from any other source. This would tend to confirm the intimation given to us by counsel for the appellant that counsel would have agreed to the reduced fees if they had been asked on January 26th.

In concluding these reasons for judgment I should perhaps sound a note of warning. It should not be thought that the hand of the Legal Aid Commission can be forced in future by briefing private practitioners for committal proceedings and making a late application for legal aid for the trial. I would not expect the significant factors in this case _ gravity of offence, complexity of trial, lack of time before trial, knowledge of the case by counsel and solicitor, and absence of material as to Commission's financial resources or commitments of Public Defender _ to recur very often. The case does however highlight the importance of decisions made about legal aid for inquests and committal proceedings. Paragraph 4(a) of the guidelines suggests that these should be seen as part of the whole trial process and dealt with accordingly, rather than in isolation.

For the reasons I have given, I would therefore order that the appeal be allowed and the of the Review Committee set aside. I would declare that, having regard to the Commission's guidelines and the other material before the Committee, the appellant was entitled to a finding that it would have been reasonable for the Director of the Legal Aid Commission (ACT) to assign the appellant to private legal practitioners and for him to have been represented by the senior and junior counsel and the solicitors who did in fact represent him at his trial commencing on 8 February 1982. I would further order that the application of the appellant be reheard by the Review Committee established under Part VI of the Legal Aid Ordinance 1977 and that that Committee approve aid for the appellant based on the rates of fees and allowances determined by the Legal Aid Commission (ACT) as appropriate at that time for the counsel and solicitors concerned.

The fourth respondent should pay the costs of both this appeal and the application to Northrop J.

JUDGE3

In this appeal I have had the advantage of reading the reasons for judgment of Blackburn J. and also those of Woodward J. which set out the Review Committee's written reasons for decision and the relevant facts, together with the relevant provisions of both the Legal Aid Ordinance 1977 (the Ordinance) and the 'guidelines' determined under s. 11 of the Ordinance by the Legal Aid Commission (A.C.T.) (the Commission). Those matters need not be repeated in these reasons. Other relevant matters appear in the judgment of Northrop J. (42 A.L.R. 245) from which this appeal is brought. As I am unable to agree that the appeal should be allowed, I shall set out those matters with which I agree and then state shortly my reasons in respect of those matters as to which I am unable to agree.

I join with Blackburn J. and Woodward J. in rejecting the submission that the appellant had so little confidence in the Public Defender that it would have been wrong and unethical for that officer to appear for him. The facts gave no support whatever to that submission. I agree with Woodward J. that the Committee was not obliged to take into account the applicant's determination to have counsel of his own choice irrespective of the Committee's decision. I also agree with him that the Review Committee was entitled to find that the Public Defender would probably have carried out the defence in as competent a manner as a suitably experienced Queen's Counsel, given the same level of support.

I agree with Woodward J. that the Committee decided that it would not assign the matter to private practitioners even if those practitioners agreed to accept the prescribed fees and that at the time of the announcement of its decision the Committee was not aware that the applicant's solicitor had been unable to contact counsel in relation to that question. Accordingly, in my opinion no breach of the principles of natural justice has been shown, assuming, without deciding, that those principles were applicable. I also agree with Woodward J. that the appellant failed to show an error of law in the sense of the misinterpretation of an enabling statute or the violation of some established legal principle.

As to the meaning of the 'guidelines', I agree with Woodward J. that they are not as clear as they should be and that paragraph 4 is strangely worded but that the clear intention is that only the legal staff of the Commission shall be assigned (if available) in respect of certain specified cases 'unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner'.

I accept the submission of Mrs. Flemming, of counsel, on behalf of the respondents Legal Aid Commission (A.C.T.), that guideline 4, which is introduced by the words 'in any event', stands out as a real exception. In my opinion it is a deliberate departure from the 'consideration' set out in s. 11(c) of the Ordinance, namely, 'the desirability of enabling a legally assisted person to obtain the services of the lawyer of his choice' (see also guidelines 1, 2, and 3).

Sub-paragraphs (b), (c), (d) and (e) of guideline 4 specify four areas 'the legal staff of the Commission, only, shall if available be assigned to act.' Sub-paragraph (a) of guideline 4, which deals with criminal charges where the costs are estimated to exceed $2,000, similarly requires that any legal assistance shall be by the legal staff of the Commission if available. However 4(a), unlike 4(b), (c), (d) and (e) of the guidelines, then expressly permits an exception to that requirement by adding the words 'unless in all the circumstances the Director is of the opinion that it is reasonable to assign the legally assisted person to a private legal practitioner;'. In my opinion guideline 4(a) means that, in respect of the cases there specified, only the legal staff of the Commission shall be assigned (if available) unless, in any particular case under consideration, the Director forms the opinion that circumstances exist which render it reasonable to assign the legally assisted person to a private legal practitioner. Mr. Higgins, on behalf of the appellant, conceded in his reply (transcript 125) that the guidelines required a positive finding by the Review Committee that it was reasonable to assign the appellant to private legal practitioners and that accordingly it was necessary that there be material before the Committee upon which such a positive finding could be based.

It follows that I am unable to agree, with respect, with the judgment of Blackburn J. allowing the appeal on the ground that the Review Committee did not apply the correct test in that it considered whether it was reasonable to assign the case to private practitioners. Nor am I able, in the context under consideration, to agree, with respect, with Woodward J. that the Director should be more easily satisfied that it would be 'reasonable to assign' a private practitioner than if the words used had been 'unreasonable not to assign'. The intention is that the person will not be assigned to a private legal practitioner unless, after considering his application for legal aid, the opinion is formed by the Director that circumstances exist that render it 'reasonable to assign (him) to a private legal practitioner'.

I am quite unable to accept the submission by the appellant that, on the material before it, the Committee was bound to find that in all the circumstances it was reasonable to assign him to private legal practitioners in this matter. In my opinion it was open to the Committee to decide on the material before it, including the availability of the Public Defender and upon its finding that he would probably carry out the defence in the murder trial in as competent a manner as a suitably experienced Queen's Counsel, that in all the circumstances it was not reasonable to assign the appellant to a private legal practitioner. There was no material before the Committee to suggest that the Public Defender would be unable, in the period between 26 January, 1982 and 8 February, 1982, to prepare the defence properly. The Committee plainly took into account the shortness of the period remaining before the date of the trial. On the day of its decision (26 January, 1982) it wrote to the appellant's solicitors, seeking urgent advice as to whether the appellant was going to 'avail himself of the officers of the Commission .. as .. it will be important that Mr. Palmer familiarise himself with the case forthwith. A telephone call to our Mr. Hardiman or Mr. Wheeler will suffice.'.

It was also submitted that the making of the decision was an improper exercise of the power given by the Ordinance in that the Committee had taken irrelevant considerations into account and had failed to take certain relevant considerations into account (s.5(1)(e) and s. 5(2) of the Judicial Review Act). I agree with the learned trial judge that no such failure has been demonstrated by the appellant. In this connexion I am unable to agree, with respect, with Woodward J. that it is open to the court to consider whether the Review Committee failed to give 'sufficient' weight to certain factors. The decision of the Review Committee 'shall be final and conclusive' (s. 40(5) of the Ordinance) and in my opinion the weight to be given to any relevant consideration is a matter for it and is not a matter for this court to consider in dealing with an application under the Judicial Review Act. In Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 A.L 639, Deane J., said :-

(at p. 645-646) 'The gravity of the consequences of the deportation ... cannot, however, warrant the court's purporting to arrogate to itself a jurisdiction which it does not possess'.

(at p. 646) 'The precise part which government policy should ordinarily play in the determinations of the Tribunal was stated, in the joint judgment of Bowen CJ, and myself, (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 A.L.R. 577 at 590-1), to be a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between the desirability of consistency in the treatment of citizens under the law and the ideal of justice in the individual case.'

(at p. 647) 'The assessment of the overall merits is, however, for the Tribunal, and not for this court. The above questions and problems, including the weight to be given to government policy, are for the consideration of the Tribunal in the performance of its functions. They do not, in themselves, constitute or involve any question of law."

(at p. 648) 'The issue involved in the present appeal is not whether, on the material before the Tribunal, the members of this court either agree or disagree with the decision which the Tribunal reached. The question before this court is whether it appears that the Tribunal fell into error of law.'.

It is true that Deane J. was there speaking of an appeal on a question of law from a decision of the Administrative Appeals Tribunal. However, in my opinion the passages quoted were equally applicable to the role of the learned trial judge in hearing the application under the Judicial Review Act. In Sean Investments v MacKellar (1981) 38 A.L.R. 363, Deane J. said :-

(at pp. 370-1) 'The jurisdiction of this court, pursuant to the Administrative Decisions (Judicial Review) Act 1977, to review the Minister's decision is a limited one. The court is not entrusted with the duty or power to conduct a review on the merits of administrative decisions to which that section applies. It is restricted to a consideration of whether it appears that the decision under review is affected by one or more of the 'grounds" specified in s. 5(1) of that Act. Generally speaking, those grounds correspond to the established common law grounds for attacking the decision of an administrative decision maker. The court must, in my view, be vigilant to ensure that it does not, under the guise of reviewing administrative decisions on questions of law, trespass in fields of administrative decision making in relation to which it possesses neither mandate nor special qualification."

(at pp. 374-5) 'As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under s. 5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane L.JJ.) in Elliott v Southwark London Borough Council (1976) 2 All E.R. 781; (1976) 1 W.L.R. 499 at 507, in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case:

'It is clear that the matters which the local authority should consider ... vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions'.

In a case such as the present, where relevant consideration not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.'

I agree, with respect, with the opinions there expressed an regard the two underlined passages, referring to the 'weight' and the 'comparative importance' of factors, as being particularly apposite.

The function of the court in hearing applications under the Judicial Review Act was also dealt with in Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 A.L.R. 186, where Fox J. said :-

(at p. 188) 'As counsel for the applicants himself pointed out the short title of the Act refers to review on 'questions of law of certain administrative decisions". The short title of the Act, of course, is not a sure or certain guide to its construction, but I refer to the matter in particular because one has at the outset the constitutional problem to which attention was paid by the committees whose reports were relied on when the various enactments were drafted. They refer to the necessity to ensure that federal courts are only vested with the judicial power of the Commonwealth.....".

(at p. 189) 'It can be said in a general way that s. 5 is concerned with acts wrong in law or contrary to law and, one might add, misuse or abuse of power.

What is set out in paras (a) to (j) of s. 5(1) accords very closely with the type of review with which one has become accustomed under prerogative writs or other avenues of review of administrative decisions, such as by way of declaration.

There is this constant reference to the exercise of power and the making of decisions without any invitation for the court to examine for itself the issues which are involved. One can pause for the thought that an Act which is already very wide in its scope would be impossibly wide if it were to empower this court to examine for itself the facts behind every decision which was capable of being reviewed.

.....

Something was made or sought to be made in argument about the use of the word 'improper" in para (e) of sub-s (1) of s 5 and the elucidation of that term in the phrase 'improper exercise' in sub-s (2) of s 5. 'Improper', whatever its precise meaning, certainly does not mean simply wrong or incorrect. It relates more obviously to something which, for some reason known to the law, is not a proper exercise of power.".

The decisions of Deane J. in Sean Investments and Fox J. in Borkovic were cited by Sheppard J. in Akpan v McPhee (unreported _ judgment delivered 7 April, 1982).

In my opinion the weight to be attached to any relevant consideration was a matter for the Review Committee and was not a matter for consideration by the trial judge. Applying to the proceedings before Northrop J. the words used by the Court of Appeal and by Deane J. respectively in the passages quoted above, it was not for the court 'to prescribe which factors should be given more weight than others' or 'to determine ... the comparative importance to be accorded to matters' which the Review Committee regarded as relevant.

As the learned trial judge said, the applicant's submissions 'were directed more to persuading the Court itself to exercise a discretion conferred by the Ordinance on the Committee. That is the very thing the Court should not do'. In my opinion his Honour was correct in deciding that the applicant had not shown that the Review Committee took into account any irrelevant considerations or failed to take into account any relevant considerations. I would dismiss the appeal.